SUBJECT:

Gregory Clark Stringham, O.D.,

Petitioner,

The Inspector General.

DECISION

I sustain the determination of the Inspector General (I.G.) to exclude Gregory Clark Stringham, O.D., ("Pro Se Petitioner" or "Petitioner") from participating in the Medicare, Medicaid, and all other federal health care programs, for a period of five years. I base my decision on the documentary evidence, the applicable law and regulations, and the I.G.'s arguments. It is my finding that the Petitioner was convicted of "a felony relating to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance," within the meaning of section 1128(a)(4) of the Social Security Act (Act).

I. Background

This case is before me pursuant to a request for hearing filed by Pro Se Petitioner on September 20, 2004.

Petitioner is a licensed Doctor of Optometry (O.D.) who was convicted in the State of Texas, 372^nd District Court of Tarrant County, of a felony offense related to the unlawful, manufacture, distribution, prescription, or dispensing of a controlled substance.

By letter dated August 31, 2004, the I.G. notified Petitioner that he was being excluded from participating in the Medicare, Medicaid, and all federal health care programs as defined in section 1128B(f) of the Act for the statutory minimum period of five years. The I.G. informed Petitioner that the action was taken under section 1128(a)(4) due to his conviction, as defined in section 1128(i), in the 372^nd District Court of Tarrant County, Texas, of a criminal offense related to the unlawful manufacturing, distribution, prescription, or dispensing of a controlled substance.

I conducted a prehearing telephone conference on January 12, 2005. The parties agreed that the case could be decided based on written arguments and documentary evidence, and that an in-person evidentiary hearing was unnecessary at that time. ⁽¹⁾ On February 16, 2005, the I.G. submitted its initial brief (I.G. Br.) and proposed exhibits. The I.G. filed four proposed exhibits. These have been identified as I.G. Exhibits (I.G. Exs. 1-4). Pursuant to the briefing schedule issued on January 13, 2005, Petitioner was directed to file his response to the I.G.'s brief not later than March 23, 2005. Petitioner did not comply with that directive by filing his response brief. Instead, by letter dated March 20, 2005, Petitioner submitted a Motion for In-Person Hearing, in which he asserted that there "are issues of law in dispute that need to be clarified and could be most efficiently done in person . . ." Petitioner's Motion for In-Person Hearing at 1. On April 29, 2005, a telephone conference was conducted to address Petitioner's motion. During the conference call, Petitioner did not offer any additional arguments relative to the existence of any factual disputes or issues of credibility that would require the sworn testimony of witnesses. Based upon the arguments and assertions put forth during the conference call, Petitioner's motion was denied by Order dated May 4, 2005. Also, contained in the May 4^th Order was an amended briefing schedule giving Petitioner until May 30, 2005 to file a response to the I.G.'s Motion for Summary Judgment. Petitioner did not meet the amended deadline established in the May 4^th Order.

On May 23, 2005, two voicemail messages were received from Petitioner in the CRD: one message was received by the staff attorney assigned to this case, and the other message was retrieved by me from the CRD voicemail system. In both of the messages, Petitioner advised of his intent not to file a response brief. A letter dated June 2, 2005 was issued by the staff attorney advising Petitioner to submit, in writing, his notice of intent not to file a response not later than June 17, 2005. Petitioner, again, failed to meet the filing deadline established. In that Petitioner failed to respond to the I.G.'s Motion for Summary Judgment, as well as object to any of the proposed exhibits submitted, I admit into evidence I.G. Exs. 1-4.

II. Issue

The only issue before me is whether the I.G. had a basis upon which to exclude Petitioner from participation in the Medicare, Medicaid, and all other federal health care programs.

III. Applicable Law and Regulations

Section 1128(a)(4) of the Act authorizes the Secretary of Health and Human Services (Secretary) to exclude from participation in any federal health care program (as defined in section 1128B(f) of the Act), any individual convicted under federal or State law, of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance.

The exclusion under section 1128(a)(4) of the Act must be for a minimum period of five years. Act, section 1128(c)(3)(B). However, aggravating factors can serve as a basis for lengthening the period of exclusion. 42 C.F.R. � 1001.102(b). If aggravating factors justify an exclusion longer than five years, mitigating factors may be considered as a basis for reducing the period of exclusion to no less than five years. 42 C.F.R. � 1001.102(c).

Pursuant to 42 C. F. R. � 1001.2007, a person excluded under section 1128(a)(4) of the Act may file a request for hearing before an administrative law judge (ALJ).

IV. Findings and Discussion

A. Petitioner is a medical doctor who was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act.

Petitioner is an O.D., who is licensed to practice medicine in the State of Texas. On January 29, 1999, Petitioner was arrested for possession of cocaine during a traffic stop in Tarrant County, Texas. I.G. Ex. 1. On March 18, 1999, Petitioner appeared before the 372^nd District Court of Tarrant County, Texas and entered a plea of nolo contendere to one felony count of possession, with the intent to deliver, of a controlled substance. I.G. Ex. 2. The Court accepted Petitioner's guilty plea and entered an order granting deferred judgment. Id. Petitioner was sentenced to probation for a seven-year period on the condition that he submit to drug testing, attend and complete a substance abuse treatment program, and perform 240 hours of community service at a rate of, no less than, 10 hours per month. I.G. Exs. 3, 4.

The I.G. argues that Petitioner was excluded from participation for a period of five years, pursuant to section 1128(a)(4) of the Act, based on his conviction in 372^nd District Court of Tarrant County of an offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. I.G. Br. at 5. The I.G. further argues that section 1128(c)(3)(B) of the Act mandates a minimum exclusion period of five years and, therefore, the reasonableness of the period of exclusion is not an issue before the ALJ. Id. at 7.

Petitioner has filed neither a cross-motion for summary judgment, nor a response to the I.G.'s motion. Therefore, no arguments or assertions in support of Petitioner's position are a part of this record.

The only question to be decided is whether Petitioner was convicted of a criminal offense relating to the manufacture, distribution, prescription, or dispensing of a controlled substance pursuant to section 1128(a)(4) of the Act. The Act provides that, for purposes of an exclusion under section 1128(a)(4), an individual is considered "convicted" of a criminal offense:

(1) when a judgment of conviction has been entered against the individual or entity by a Federal, State, or local court, regardless of whether there is an appeal pending or whether the judgment or conviction or other record relating to criminal conduct has been expunged;

(2) when there has been a finding of guilt against the individual or entity by a Federal, State, or local court;

(3) when a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court; or

(4) when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld.

Act, section 1128(i).

In the case before me, Petitioner entered a plea of nolo contendere to one count of "possession with intent to deliver a controlled substance of one gram or more, but less than four grams, namely cocaine." I.G. Ex 2. I find that Petitioner must be deemed "convicted" under the broad language of section 1128(i) of the Act. Pursuant to that section, an individual is considered "convicted" when "a plea of . . . nolo contendere . . . has been accepted by a Federal, State, or local court," or ". . . the individual has entered into participation in . . . deferred adjudication . . . where judgment of conviction has been withheld." Act, section 1128(i)(3), (4).

B. Petitioner's exclusion for a period of five years is the mandatory minimum period as a matter of law.

An exclusion under section 1128(a)(4) of the Act must be for a minimum mandatory period of five years. Act, section 1128(c)(3)(B). When the I.G. imposes an exclusion for the mandatory five-year period, the reasonableness of the length of the exclusion is not an issue. 42 C.F.R. � 1001.2007(a)(2).

C. I do not have the authority to review the timing of an exclusion.

The I.G. raises the issue of whether I have the authority to review the timing of the exclusion. Specifically, the I.G. asserts that the timing of an exclusion is solely within the discretion of the I.G. and, therefore, not reviewable by an ALJ. I.G. Br. at 7-8. The date of Petitioner's plea of nolo contendere was March 18, 1999. I.G. Ex. 2, at 1. The I.G.'s notice of exclusion to Petitioner was not issued until August 31, 2004. See I.G.'s Notice of Exclusion dated August 31, 2004. There is a period of five years and five months between the entry of Petitioner's judgment on the plea agreement and the issuance of the exclusion notice.

Even if Petitioner had presented an argument to the I.G.'s position, the regulations and Board decisions are clear on this point. An ALJ does not have the authority to review the timing of the I.G.'s determination to impose an exclusion. Section 1005.4(c)(5) of Title 42, Code of Federal Regulations, prescribes that an administrative law judge is without authority to review any exercise of discretion by the I.G. An appellate panel of the Departmental Appeals Board (Board) determined, in Samuel W. Chang, M.D., DAB No. 1198 (1990), that the timing of the I.G.'s decision to effect an exclusion is discretionary and fundamentally unreviewable. Since Chang, the ALJs and the Board have repeatedly applied this rule without taking into consideration the length of time between the predicate event and the I.G.'s actions. See, e.g., Ishfaq Pendi, M.D., DAB CR368 (1995) (the delay totaled 44 months); Chander Kachoria, R.Ph., DAB No. 1380 (1993) (a delay of 31 months); Morton Markoff, D.O., DAB CR538 (1998) (a delay of 53 months); Richard G. Philips, D.P.M., DAB No. 1279 (1991) (a delay of 16 months); Stephen Michael Cook, M.D., DAB CR1234 (2004) (a delay of 32 months). Based upon this well-settled body of authority, it is clear that I am without authority to entertain a question of the I.G.'s timing as it pertains to the imposition of an exclusion.

V. Conclusion

It is my determination that the I.G. was authorized to exclude Petitioner from participation in Medicare, Medicaid, and all federal health care programs. Sections 1128(a)(4) and 1128(c)(3)(B) of the Act mandate that Petitioner be excluded from participation for a period of at least five years because of his conviction of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance.

Alfonso J. Montano

Administrative Law Judge

1. During the conference call, I granted Petitioner leave to file a request for hearing as part of his response to the I.G.'s brief should he have deemed it necessary after review of the I.G.'s initial brief.